United States v. Arturo Sanchez, Jr. ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 10-50192
Plaintiff-Appellee,
v.  D.C. No.
3:08-cr-02529-L-1
ARTURO SANCHEZ, JR.,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Argued and Submitted
May 4, 2011—Pasadena, California
Filed November 1, 2011
Before: Harry Pregerson, Raymond C. Fisher, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Pregerson
19805
19808 UNITED STATES v. SANCHEZ
COUNSEL
Carlos Arguello, II, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.
David J. Zugman, San Diego, California, for the defendant-
appellant.
OPINION
PREGERSON, Circuit Judge:
Arturo Sanchez appeals his convictions for importation and
possession of cocaine. He asserts that the last statement made
by the prosecution in its closing rebuttal argument rendered
the trial unfair. Sanchez further asserts that the district court
erred in denying his request for closing surrebuttal on his
duress defense. We hold that the prosecutor’s inflammatory
remarks delivered at the end of his closing rebuttal argument
were improper and prejudicial. We reverse Sanchez’s convic-
tions and remand for a new trial.
UNITED STATES v. SANCHEZ 19809
BACKGROUND
1. The offense
On May 26, 2008, Arturo Sanchez entered the United
States from Mexico at the Calexico, California port of entry
driving a 2002 Passat. A customs officer referred Sanchez to
secondary inspection. There a narcotics detector dog alerted
to the rear side of the vehicle. A search revealed hidden com-
partments containing 29 kilograms, or 64 pounds, of cocaine.
An Immigration and Customs Enforcement special agent
then interviewed Sanchez. Sanchez told the special agent that
he knew that drugs were hidden in his vehicle, but that he was
told it was marijuana. Sanchez told the special agent he was
paid $700 to carry the drugs across the border. Sanchez also
told the special agent that he was afraid of the people who
gave him the drugs to transport, and that they knew where he
lived in Mexico. Sanchez asked the special agent, “Can you
help me?” Sanchez said he needed help because his family
was in Mexico, which the special agent assumed meant San-
chez was concerned for his family’s safety. When the special
agent asked Sanchez to help him track down Sanchez’s
accomplices, Sanchez said he wanted his family to be safe.
Later, Sanchez tried to call his family in Mexico, but the call
did not go through.
Sanchez was indicted for importation of cocaine in viola-
tion of 21 U.S.C. §§ 952, 960, and possession of cocaine with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1). At
trial, the customs officers and the special agent testified
regarding their interactions with Sanchez.
2. Sanchez’s testimony
Sanchez took the stand and testified that, although he knew
he was driving a vehicle containing drugs, he had done so
under duress because drug traffickers had threatened his fam-
19810 UNITED STATES v. SANCHEZ
ily. Sanchez testified that he is a U.S. citizen living in Mexico
with his wife and children. He met the drug traffickers in
March 2008 in Calexico, where Sanchez was looking for
work as a carpenter. When the traffickers learned Sanchez
was a U.S. citizen, they asked if he would transport marijuana
across the border for them. Sanchez refused, having been con-
victed once before for transporting marijuana in 2005.
Over the next several weeks Sanchez twice encountered the
traffickers, and each time they were more threatening. He tes-
tified that the traffickers told him if he did not transport the
drugs for them, they would do something to his family. San-
chez believed the men were capable of carrying out this threat
because he knew the Mexican drug cartels were very violent.
Thus, he agreed to transport the drugs to the United States.
Sanchez testified he never called the Mexican police because
he believed they were corrupt and in the pocket of the drug
traffickers. Nor did he tell his wife, for fear that she would tell
her mother, who might go to the police.
On cross-examination, Sanchez acknowledged that he
never expressly told the border authorities that he had been
forced to transport the drugs or that he was afraid the traffick-
ers would hurt his family, because he did not feel safe doing
so. He did ask the border authorities for help protecting his
family, but did not explain why he feared for his family’s
safety.
3. Closing arguments
Before closing arguments, Sanchez’s attorneys requested
that they be granted surrebuttal following the prosecutor’s
closing rebuttal argument because Sanchez had the burden of
proving duress. The court denied the request. The court
instructed the jury that Sanchez bore the burden of proving
duress by a preponderance of the evidence. The court also
instructed the jury that arguments, statements, questions, and
UNITED STATES v. SANCHEZ 19811
objections by the lawyers did not constitute evidence, and
could not be considered “in deciding what the facts are.”
The prosecutor delivered his closing argument, followed by
the defense counsel’s closing argument. The prosecutor then
commenced his rebuttal with remarks about the law of duress.
The defense counsel objected that the prosecutor was misstat-
ing the law. Instead of ruling on the objection, the court
responded by reminding the jury to follow the court’s instruc-
tions, and by telling the jury that “what the lawyers say is not
evidence.”
At the end of his rebuttal, the prosecutor stated that the
defense counsel was asking the jury to believe Sanchez’s
duress claim even though Sanchez had said nothing about
fearing for his family’s safety to the customs officers at pri-
mary or secondary inspection or to the ICE special agent. The
prosecutor then said:
[W]hy don’t we send a memo to all drug traffickers,
to all persons south of the border and in Imperial
County and in California—why not our nation while
we’re at it. Send a memo to them and say dear drug
traffickers, when you hire someone to drive a load,
tell them that they were forced to do it. Because even
if they don’t say it at primary and secondary, they’ll
get away with it if they just say their family was
threatened. Because they don’t trust Mexican police,
and they don’t think that the U.S. authorities can
help them. Why don’t we do that?
Following this “send a memo” statement, the court said
“Okay. All right. Ladies and gentlemen, we have concluded.”
The bailiff was sworn and told to take the jury into the jury
room. After just over an hour of deliberation, the jury found
Sanchez guilty on both counts of the indictment. Sanchez
timely appealed.
19812 UNITED STATES v. SANCHEZ
DISCUSSION
Sanchez contends that the “send a memo” statement made
by the prosecutor during his closing rebuttal was improper
argument. Sanchez did not raise this objection before the dis-
trict court. Thus, we review for plain error. United States v.
Weatherspoon, 410 F.3d 1142, 1150-51 (9th Cir. 2005).
Under the plain error standard, we can only reverse Sanchez’s
convictions if (1) the “send a memo” statement was improper,
and (2) the statement “substantially prejudice[d] [the] defen-
dant’s trial.” United States v. Koon, 34 F.3d 1416, 1445 (9th
Cir. 1994), aff’d in part, rev’d in part on other grounds, 518
U.S. 81 (1996). Even if both prongs of the test are met, “[t]he
plain error doctrine ‘authorizes the Courts of Appeals to cor-
rect only particularly egregious errors . . . that seriously affect
the fairness, integrity or public reputation of judicial proceed-
ings.’ ” United States v. Bracy, 67 F.3d 1421, 1432 (9th Cir.
1995) (quoting United States v. Young, 470 U.S. 1, 15
(1985)).
1. Impropriety
[1] “[P]rosecutors may not urge jurors to convict a crimi-
nal defendant in order to protect community values, preserve
civil order, or deter future lawbreaking. The evil lurking in
such prosecutorial appeals is that the defendant will be con-
victed for reasons wholly irrelevant to his own guilt or inno-
cence.” United States v. Nobari, 574 F.3d 1065, 1076 (9th
Cir. 2009) (quoting Koon, 34 F.3d at 1443) (internal quotation
marks omitted). Similarly, prosecutors may not “point to a
particular crisis in our society and ask the jury to make a
statement” with their verdict. United States v. Leon-Reyes,
177 F.3d 816, 823 (9th Cir. 1999); see also United States v.
Williams, 989 F.2d 1061, 1072 (9th Cir. 1993) (improper to
exhort jury to “[t]ell these defendants that we do not want
[methamphetamine] in Montana” (alteration in original)). Nor
can prosecutors comment on “the potential social ramifica-
tions of the jury’s reaching a . . . verdict.” Weatherspoon, 410
UNITED STATES v. SANCHEZ 19813
F.3d at 1149 (improper for prosecutor to say that “finding this
man guilty is gonna protect other individuals in this commu-
nity”). Further, it is improper to make “statements designed to
appeal to the passions, fears and vulnerabilities of the jury.”
Id.
[2] The prosecutor’s “send a memo” statement urged the
jury to convict “for reasons wholly irrelevant to [Sanchez’s]
guilt or innocence.” Nobari, 574 F.3d at 1076. The point of
the “send a memo” statement was that if the jury acquitted
Sanchez based on his duress defense, the verdict would in
effect send a message to other drug couriers to use that
defense themselves. This message would extend “to all drug
traffickers, to all persons south of the border and in Imperial
County and in California—why not our nation while we’re at
it.” The obvious implied consequence of such a message
would be increased lawbreaking, because couriers would be
less afraid of conviction. Thus, by his “send a memo” state-
ment, the prosecutor was encouraging the jury to come to a
verdict based not on Sanchez’s guilt or innocence, but on the
“potential social ramifications” of the verdict. Weatherspoon,
410 F.3d at 1149. This was improper argument.
[3] The government contends that the “send a memo”
statement was “fair comment on the arguments raised in the
defense’s closing argument.” Appellee’s Br. at 21. The gov-
ernment asserts that the statement merely “served to impress
upon the jury that Sanchez advocated a wholly unreasonable
position” and “[Sanchez] was really trying to avoid criminal
liability on facts that anyone could assert at any time, whether
true or not.” Id. But the prosecutor could easily have made
these points without implying that other criminals would be
encouraged by Sanchez’s acquittal. Instead, the prosecutor
chose to present the argument in a manner that urged the jury
to look beyond the facts of the particular case, and to consider
that an acquittal might lead to future lawbreaking not just by
Sanchez, but by drug couriers throughout the United States
and Mexico. The prosecutor’s statement did not merely com-
19814 UNITED STATES v. SANCHEZ
ment on the evidence and arguments in the case, but also “ap-
peal[ed] to the passions, fears and vulnerabilities of the jury”
by suggesting that an acquittal would make it easier for drugs
to come into the United States. Weatherspoon, 410 F.3d at
1149. Thus, we conclude that the “send a memo” statement
was improper argument.
2. Prejudice
Under the plain error standard, “reversal is appropriate
‘only if the prosecutor’s improper conduct so affected the
jury’s ability to consider the totality of the evidence fairly that
it tainted the verdict and deprived [the defendant] of a fair
trial.’ ” Weatherspoon, 410 F.3d at 1151 (quoting United
States v. Smith, 962 F.2d 923, 935 (9th Cir. 1992)). Put
another way, “[w]hen prosecutorial conduct is called in ques-
tion, the issue is whether, considered in the context of the
entire trial, that conduct appears likely to have affected the
jury’s discharge of its duty to judge the evidence fairly.”
United States v. Simtob, 901 F.2d 799, 806 (9th Cir. 1990).
[4] To determine whether prosecutorial misconduct has
deprived a defendant of a fair trial, we look to the substance
of any curative instructions, and the strength of the case
against the defendant absent the misconduct. See Weather-
spoon, 410 F.3d at 1151.
A. Curative instructions
The prosecutor’s “send a memo” statement that an acquittal
would encourage future lawbreaking throughout the United
States and Mexico was the last part of his closing rebuttal
argument. The defense counsel raised no objection, and the
district court made no comment about the prosecutor’s state-
ment. Instead, the court declared closing arguments concluded
and sent the jury to the jury room to deliberate. Thus, there
was no curative instruction to mitigate the prejudice of the
“send a memo” statement.
UNITED STATES v. SANCHEZ 19815
The government argues that because the district court
instructed the jury on two occasions before the “send a
memo” statement that “what the lawyers say is not evidence,”
the “potential effect of [the] prosecutor’s misstatements” was
neutralized. Appellee’s Br. at 23. This argument is unavailing.
We have held that curative instructions fail to “neutralize the
harm” of improper statements by a prosecutor when “ ‘[t]hey
[do] not mention the specific statements of the prosecutor and
[are] not given immediately after the damage [is] done.’ ”
Weatherspoon, 410 F.3d at 1151 (quoting United States v.
Kerr, 981 F.2d 1050, 1054 (9th Cir. 1992)).
[5] The district court’s jury instructions do not meet the
Weatherspoon test. Before closing arguments, the district
court gave an instruction that arguments, statements, ques-
tions, and objections by lawyers are not evidence. Then,
immediately before the prosecutor’s “send a memo” state-
ment, the district court responded to an objection by the
defense by reminding the jury to follow the jury instruction on
the legal requirements of duress, and not to consider the law-
yers’ statements as evidence. Advising a jury that lawyers’
statements are not evidence is not equivalent to advising it to
consider only the facts of the immediate case, rather than the
possible societal consequences of its ruling. Morever, once
the “send a memo” statement was made, the district court did
not address that specific statement, and gave no curative
instruction. Thus, under Weatherspoon, the district court
failed to neutralize the harm caused by the prosecutor’s “send
a memo” statement.
We acknowledge that Sanchez’s counsel bears some
responsibility for the error. Had the defense objected to the
prosecutor’s rebuttal, we have no doubt the district court
would have issued a strongly worded curative instruction. But
“even in the absence of objections by defense counsel, a ‘trial
judge should be alert to deviations from proper argument and
take prompt corrective action as appropriate.’ ” Id.
19816 UNITED STATES v. SANCHEZ
[6] The government cites to various cases for the proposi-
tion that a general jury instruction can “neutralize the effect
of a prosecutor’s misstatements,” but these cases are distin-
guishable. In United States v. Bracy, the prosecutor in closing
argument suggested that the demeanor of two of the defen-
dants during their cross-examinations indicated that they were
afraid of their third co-defendant, “the imminent source of
evil in this courtroom.” 67 F.3d at 1431. On appeal, we found
these statements to be “a reasonable inference from the evi-
dence presented.” Id. Specifically, the jury had already heard
evidence of the co-defendant’s “violent conduct” and “intimi-
dation tactics,” and the fact that witnesses were afraid of him.
Id. Moreover, it was not improper for the jury “to weigh a
witness’s credibility based on his manner and demeanor on
the stand.” Id. We held that, under these circumstances, a gen-
eral jury instruction declaring that “questions, objections,
statements, and arguments of counsel are not evidence” was
sufficient to neutralize any prejudice. Id. (alteration omitted)
[7] Unlike in Bracy, the “send a memo” statement in the
instant case was not a reasonable inference from the evidence,
nor did it relate to matters the jury was entitled to consider.
A defendant’s demeanor in the courtroom is arguably relevant
to determining his guilt or innocence, and in determining his
credibility. Thus, the statements in Bracy were not clearly
improper. In Sanchez’s case, however, the prosecutor was not
commenting on the defendant, but on the potential adverse
consequences of an acquittal, namely that the acquittal would
encourage and facilitate lawbreaking. The “send a memo”
rhetoric was designed to arouse and inflame the jury to return
a guilty verdict based on passion and prejudice. Bracy does
not compel the conclusion that a generalized jury instruction
that the statements of counsel are not evidence is sufficient to
dispel the level and type of prejudice generated by the prose-
cutor in this case.
In United States v. Amlani, the prosecutor at the beginning
of his closing argument referred to the Seventh Command-
UNITED STATES v. SANCHEZ 19817
ment as the source of the law against stealing. 111 F.3d 705,
714 (9th Cir. 1997). The defendant argued that this was an
“appeal to religious prejudice.” Id. We held that this “argu-
able appeal to the parochial inclinations of [a] jury” was
harmless. Id. The biblical reference was logically connected
to humorous statements made by the defendant regarding an
imaginary Eleventh Commandment, and the prosecutor also
linked the Seventh Commandment back to the specific federal
statutes under which the defendant was charged. Id. In this
context, a general jury instruction was adequate to address
any prejudice from the biblical reference. Id.
Whereas the reference to the Seventh Commandment in
Amlani was a minor point made at the beginning of the prose-
cutor’s closing argument, the “send a memo” rhetoric in San-
chez’s case was invoked by the prosecutor at the end of his
closing rebuttal argument, after which the jury commenced its
deliberations. See United States v. Carter, 236 F.3d 777, 788
(6th Cir. 2001) (finding it significant that “[t]he prosecutor’s
improper comments occurred during his rebuttal argument
and therefore were the last words from an attorney that were
heard by the jury before deliberations.”). Given the timing,
the impact was likely to be significant, and the court did not
intervene.
Moreover, unlike in Amlani, the “send a memo” statement
was not logically connected to the testimony of Sanchez, or
to the elements of duress; instead, it was a policy argument
against acquittal. The statement in Amlani was not even an
argument in and of itself, but an effort to emphasize that steal-
ing is wrong, something of which the jury did not need to be
reminded. The “send a memo” statement, in contrast, was a
fully developed argument raising the specter of future law-
breaking to divert the jury from its obligation to reach a ver-
dict based only on the evidence. Thus, the challenged
19818 UNITED STATES v. SANCHEZ
statement in Amlani was far less prejudicial than the “send a
memo” statement.1
[8] Therefore, we hold that the general instructions the dis-
trict court gave to the jury were insufficient to mitigate the
prejudice of the “send a memo” statement.
B. Strength of the government’s case
As we stated in Weatherspoon,
Another important factor contributing to the prejudi-
cial effect of improper statements is the strength of
the case against a defendant. When the case is partic-
ularly strong, the likelihood that prosecutorial mis-
conduct will affect the defendant’s substantial rights
1
The other cases the government cites are also unavailing. In United
States v. McChristian, the general jury instruction was just one of several
factors weighing against reversal. The court also held that there was over-
whelming evidence of the defendant’s guilt and that the defendant’s argu-
ment had invited most of the errors. 47 F.3d 1499, 1508 (9th Cir. 1995).
As will be discussed below, the evidence of Sanchez’s guilt (more specifi-
cally, the evidence that he was lying about the threat to his family) was
not overwhelming. Further, by merely putting forth a duress defense San-
chez did not invite a statement that juries who accept such defenses are
encouraging future lawbreakers. Thus, McChristian is distinguishable.
The government’s final cited case, Tak Sun Tan v. Runnels, 413 F.3d
1101 (9th Cir. 2005), is distinguishable from the instant case for four rea-
sons: (1) the conviction was reviewed under the highly deferential stan-
dard mandated by the Antiterrorism and Effective Death Penalty Act (id.
at 1111), unlike the direct review in Sanchez’s case; (2) the Tan court
found that the prosecutor had not acted improperly at all (id. at 1115),
whereas here the prosecutor’s statement was clearly improper; (3) the evi-
dence against the Tan defendants was substantial (id.), whereas in San-
chez’s case the evidence that he fabricated his duress defense was not
substantial; (4) and the Tan trial court gave continuous instructions to the
jury throughout the trial to mitigate any prejudice (id.), whereas in San-
chez’s case the court gave two general instructions, and did nothing to
mitigate the prejudice after the “send a memo” statement was made. Thus,
Tan is unavailing to the government.
UNITED STATES v. SANCHEZ 19819
is lessened because the jury’s deliberations are less
apt to be influenced. But as the case becomes pro-
gressively weaker, the possibility of prejudicial
effect grows correspondingly.
410 F.3d at 1151. In Weatherspoon, we found that the prose-
cutor had impermissibly vouched for the credibility of his wit-
nesses, and had encouraged the jury to convict with improper
statements such as, “Convicting Mr. Weatherspoon is gonna
make you comfortable knowing there’s not convicted felons
on the street with loaded handguns,” and “finding this man
guilty is gonna protect other individuals in this community.”
Id. at 1146-50. We further concluded that the government’s
evidence against the defendant was not particularly strong:
“This was a comparatively close case that boiled down to a
battle over credibility.” Id. at 1151-52. Thus, the “prosecu-
torial statements that vouch[ed] for the credibility of wit-
nesses and that encourage[d] the jury to act based on
considerations other than the particularized facts of the case
pose[d] a real danger to the defendant’s right to a fair trial.”
Id. at 1152. Because the trial court had not given an effective
curative instruction to remedy the unfairness, we reversed the
conviction for plain error. Id.
[9] As in Weatherspoon, Sanchez’s case came down to a
“battle over credibility.” There was no dispute that he had
committed all the elements of the crimes he was charged with,
so the entire question of guilt or innocence centered on
whether Sanchez had committed the crimes under duress. The
only evidence Sanchez put forth to support his duress defense
was his own testimony and statements he made to the border
officials at the time of his arrest. To contest this evidence, the
prosecutor argued that Sanchez had not mentioned to the bor-
der officials that he had agreed to transport drugs across the
border under duress. Sanchez countered that the American
authorities would not have been able to help him or his family
living in Mexico, so telling them he had been forced to trans-
port the drugs would serve no purpose. In short, there was no
19820 UNITED STATES v. SANCHEZ
clear evidence either way. This case came down to a credibil-
ity determination—if the jury believed Sanchez, they would
acquit him.
[10] Because the sole issue in Sanchez’s case centered on
witness credibility, the “send a memo” statement likely
affected the jury’s ability to decide the case fairly. We cannot
comfortably assume that the jury would have convicted San-
chez absent the prosecutor’s misconduct, given the scarcity of
evidence for either side on the duress claim, other than San-
chez’s testimony. Moreover, the prosecutor presented the
“send a memo” rhetoric during his rebuttal, thus ensuring that
it was the last argument the jury heard before going to the jury
room to deliberate. This timing increased the risk that the
inflammatory statement would improperly influence the
jurors. See Carter, 236 F.3d at 788. Under these circum-
stances, we hold that the prosecutor’s “send a memo” argu-
ment “ ‘affected the jury’s ability to consider the totality of
the evidence fairly.’ ” Weatherspoon, 410 F.3d at 1152 (quot-
ing Smith, 962 F.2d at 935).2
CONCLUSION
[11] Given the extent of the prosecutor’s misconduct in
suggesting that Sanchez’s acquittal would encourage future
lawbreaking, and the high risk that the misconduct influenced
the jury’s deliberations, we hold that the “send a memo” state-
ment “seriously affect[ed] the fairness, integrity or public rep-
utation of judicial proceedings.” Bracy, 67 F.3d at 1432
(quoting Young, 470 U.S. at 15). We reverse Sanchez’s con-
2
Our analysis is not affected by our recent decision in United States v.
Ibarra-Pino, ___ F.3d ___, 2001 WL 4359925 (9th Cir. Sept. 20, 2011).
The government has not argued that the district court erred by allowing
Sanchez to present a duress defense to the jury or by providing the jury
with a duress instruction. Ibarra is therefore inapplicable.
UNITED STATES v. SANCHEZ 19821
victions for plain error and remand for a new trial.3
REVERSED AND REMANDED.
3
Because we remand for a new trial, we do not reach Sanchez’s claim
that the district court improperly denied him surrebuttal.